Lewis v. Miller et al

Filing 72

ORDER: The Report and Recommendation is ACCEPTED as to its legal conclusion but not as to its discourteous rhetoric. The plaintiffs Motion for Attorney's Fees and Costs (Docket No. 53) is DENIED. Signed by District Judge Aleta A. Trauger on 8/6/2015. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

PHYLLIS LEWIS,
Plaintiff,
v.
PAUL MILLER, Administrator, et al.,
Defendants.

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Civil No. 3:14-cv-0897
Judge Trauger
Magistrate Judge Knowles

ORDER
On July 21, 2015, the Magistrate Judge issued a Report and Recommendation (Docket
No. 66), to which the plaintiff has filed an Objection (Docket No. 71).
The Report and Recommendation related to the plaintiff’s Motion for Attorney’s Fees
and Costs (Docket No. 53), which is considered a dispositive matter. When a magistrate judge
issues a report and recommendation regarding a dispositive pretrial matter, the district court must
review de novo any portion of the report and recommendation to which a specific objection is
made. Fed. R. Civ. P. 72(b); 28 U.S.C. §636(b)(1)(C); United States v. Curtis, 237 F.3d 598,
603 (6th Cir. 2001); Massey v. City of Ferndale, 7 F3d 506, 510 (6th Cir. 1993).
The Report and Recommendation gratuitously belittled the plaintiff’s filing by stating that
she offered “no basis whatsoever for an award of attorney’s fees and costs.” Moreover, the
Report and Recommendation states that it is “unclear whether Plaintiff seeks to recover those
fees and costs from Defendant Paul Miller or from Ms. Gould.” (Docket No. 66 at 2) The record
makes clear that the plaintiff was seeking attorney’s fees and costs from Defendant Miller
pursuant to Rule 54(d)(2), Federal Rules of Civil Procedure and Local Rule 54.01(b) (Docket No.

53), as the Clerk had instructed her to do in the Default Judgment awarded to her against
Defendant Paul Miller on December 9, 2014 (Docket No. 46 at 1). Unfortunately, the plaintiff
states in her Objection that she “thought she had 60 days to file a motion for fees and costs.”
(Docket No. 71 at 2) In fact, pursuant to Local Rule 54.01(b)(1), her motion was to have been
filed within 30 days from the entry of the default judgment. The Default Judgment was entered
on December 9, 2014, but the Motion for Attorney’s Fees and Costs was not filed until January
20, 2015. As such, the motion is untimely, and the court finds no basis for excusing the
plaintiff’s failure to comply with this deadline. For these reasons, the plaintiff’s objections are
OVERRULED, and the Report and Recommendation is ACCEPTED as to its legal conclusion
but not as to its discourteous rhetoric. The plaintiff’s Motion for Attorney’s Fees and Costs
(Docket No. 53) is DENIED.
It is so ORDERED.
Enter this 6th day of August, 2015.

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ALETA A. TRAUGER
U.S. District Judge